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Failing to provide a specimen - drink driving

Failing to provide a specimen of breath, blood or urine without reasonable excuse is a criminal offence. Often, a person may have a reasonable excuse (whether a medical reason or not) for not providing a sample meaning that a charge for this offence may not always lead to a conviction.

It is important to always take legal advice when charged with failing to provide a specimen because, whether there is an obvious defence available or not, the penalties for failing to provide a specimen are extremely wide ranging with the sentencing guidelines giving much more room for interpretation than the more definitive offence of drink driving.

What is certain is that a disqualification if convicted will lead to a ban from driving for a minimum of 12 months. Due to the make-up of the sentencing guidelines the courts’ routinely look to impose disqualifications for this offence by starting at the 17 month mark. Even if it appears that there is no defence available, it is important to get the right representation at court to ensure the court take all of the relevant factors into consideration when deciding upon penalty.

Sentencing guidelines - failing to provide a specimen

For first time offences the Magistrate's Court will refer to the following guidelines:

Examples of nature of activity

Starting point

Range

Disqualification

Defendant refused test when held but unreasonable excuse

Band C fine

Band C fine

12 – 16 months

Deliberate refusal or deliberate failure

Low level community order

Band C fine to high level community order

17 – 28 months

Deliberate refusal or deliberate failure where evidence of serious impairment

12 weeks custody

High level community order to 26 weeks custody

29 – 36 months

Penalties for those who have a previous drink related driving conviction within the previous 10 years start at 36 months (3 years) and can go up to as much as 60 months (5 years).

Rather than simply blindly advising you to enter plea of guilty and looking at a damaged limitation approach, our experts at Stephensons have the knowledge and expertise to give you initial advice regarding any potential defences that may be available. It is not just a defence of ‘reasonable excuse’ that can lead to you being acquitted. There are a number of different issues to be considered that can eventually lead to you being acquitted:

The legal basis behind our defences

Reasonable excuse

The most common defence for failing to provide a specimen is one of a reasonable excuse due to a medical reason.

Some examples of medical reasons for why a specimen cannot be provided are:

Failing to provide - breath

Asthma or other respiratory condition

Anxiety or panic attack

Failing to provide - blood

Needle phobia

Failing to provide - urine

Urinary tract infection

Prostate problems

By presenting proof of a medical condition together with the insight of a specialist expert to confirm that the condition is the reason for the failure to provide, we can convince the court that there was a ‘reasonable excuse’ for why you could not satisfy the requirements of the test. In those cases, you have to be acquitted.

Legal knowledge to find the ‘real issues’

It is not enough to raise an issue and then refuse to provide simply based on the raising of an unsubstantiated issue, there has to be a genuine medical basis behind the issue raised and in most cases you will have to make some attempt to provide that specimen in any event. However, when a medical reason is raised it is not acceptable for the police officer to dismiss the reason raised without further investigation. It can even be argued that is for a police station doctor or nurse to make a decision about a person’s medical condition if such an issue is raised. Cases such as Wade v DPP [1996] RTR 177), where the prosecution failed because the Police Constable in the case had failed to enquire further on the issue of 'taking tablets' as a medical reason for refusing to give a specimen show us that the police need to ensure that the police need to deal with you carefully and properly in order for an accusation to be successfully prosecuted. At Stephenson’s we have the expert knowledge and diligent approach required to identify any fault in the way you have been dealt with that can lead to the charges against you being dismissed.

It is our business to deliver legal services that work for our clients, you can trust our specialists to take care of things on your behalf. Over the years our regulatory and criminal justice team has been recognised by industry awards and accredited for their excellence.

Procedure (at the police station and beyond)

The offence of failing to provide a specimen stems from the failure to comply with the requirements set out by the drink driving procedure. Failing to provide a specimen can only stand as a ‘safe’ prosecution if the correct procedure has been followed by the police officers when making any requirement. Compliance with procedure and process plays just as big a role in a successful prosecution after charge. It is often possible to have a case dismissed on the basis that the CPS have not complied with procedure leading up to trial. Our experts at Stephensons have the experience to be able to help capitalise on any procedural inadequacy to give you the best possible chance of acquittal.

Right to legal advice and delay

In all cases the police need to ensure they comply fully with the codes set out by the Police and Criminal Evidence Act 1984 (PACE), which sets out issues such as the right to legal advice. The usual stance in relation to the right to legal advice is that the drink driving procedure and the obtaining of a specimen will not be delayed to allow legal advice. However, if there is a solicitor immediately available to speak to then there are certain instances when that advice should be allowed to take place before any decision is made about charging with failing to provide, as set out in the case of Kennedy v DPP [2002] All ER (D) 77 (Nov). Similarly, there can sometimes be issues with how legal advice or advice given about the process and procedure has affected the time afforded to someone when attempting to blow into a device as exampled in the case of Plackett v DPP [2008] EWHC 1335 (Admin). A thorough examination of the process at the police station is vital. We have the experts and approach to assist with identifying and flaw or breach that can assist with your defence.

Expert insight

Stephensons’ specialist motoring lawyers have the experience and expertise to advise you of any potential defences open to you and assist you through the legal process, call our 24 hour driving offence 0203 816 9274 helpline on or complete our online enquiry form for free initial advice.

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